Trial Is An Expensive Way To Get Your Pound of Flesh

I just completed a 10 or so day trial (really a binding arbitration). Why did it take so long? Were there complicated valuation issues? No. Complicated alimony issues? No. Custody issues? No – custody and parenting time were already settled.

The answer in large part was one party’s bad faith and need to extract a pound of flesh. He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense. The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007. The case lingered and trial did not start until the fall 2009. Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal. Why – as every knows, real estate values were going down. Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage. Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur. She had to get another one in August 2008 before the trial started. The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.

The husband got an employability expert to determine the wife’s earning capacity. This is not unusual. What caused a waste of time is that he lied to his expert about what his wife did when he had a small consulting business in the late 90s, trying to portray her as not being out of the workforce, despite the fact that she probably worked only a few hours per month.

Plaintiff’s direct examination was 3 to 4 hours. The cross examination was several days. Why? Despite the fact that he had no evidence of it nor would it be relevant, the husband had his lawyer try to pursue an adultery claim. He had his lawyer try to pursue issues of parenting alienation despite the fact that custody was settled and the joint expert blamed his relationship with the children in larger measure on his conduct.

In addition, he had his lawyer nitpick on minutiae that was not relevant to anything. Even if my client got the answer wrong, it would not prove that she was not credible.

In fact, both this cross examination and the trial in general was torturous because of the costly and needless waste of time by the husband delving into irrelevant issues, which then had to be rebutted. This brings up another point. Just because you are having a trial does not mean you have to address every issue and every fact as to every issue that has every come up in a case. Courts and arbitrators don’t care about such nonsense. It only causes more in counsel fees. While it would be easy to cast aspersions at opposing counsel’s trial capabilities, clearly much of it was following the marching orders of her client – at great and outrageously needed expense of both parties.

One can only hope that when all is said and done, counsel fees will be assessed such that the husband will pay for the folly he created.

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